Court of Protection: How does marriage effect the validity of a Will?

Wills & weddings; a difficult marriage…

A recent reported case in the Court of Protection has highlighted the effect of a marriage on the validity of a Will, and the different tests that apply to capacity for certain circumstances.

In this case, a father of three Daughters in his mid-eighties had given one of his Daughters a Lasting Power of Attorney before he developed Alzheimers. He had also drawn up a Will in 2013, leaving his long-term partner (who was in her seventies) the following:

(i) lump sum of £300,000,

(ii) the majority of his Pension, and

(iii) the right to live in his home for two years,

The Residue of his £1.7 million Estate would be divided equally between his three Daughters.

The father subsequently indicated a wish to marry his partner. The Daughter who was the Attorney applied to the Court for an injunction to prevent the marriage. An interim injunction was granted in 2017, before the case was then transferred to the Court of Protection. The case is interesting for a number of reasons.

1. It considers the effect of a marriage on the validity of a Will. When a person marries, any Will made prior to the date of marriage is revoked (unless it is made in contemplation of the marriage). Accordingly, unless the person then makes a new Will after the marriage, on their death, their Estate will be subject to the Rules of Intestacy.

2. In this case, under the Rules of Intestacy, his new wife would receive a Statutory Legacy of £250,000, together with half of the Residuary Estate. The other half of the Residuary Estate would be divided equally between his three Daughters.

3. It considers the different tests of capacity that apply in certain circumstances. The Court of Protection decided, after obtaining assessments from both an independent assessor and a consultant psychiatrist, that he lacked the necessary capacity to make a valid Will, but had capacity to marry. The legal threshold for capacity to marry is far lower than what is required to make a valid Will.

The decision to marry is not considered particularly complex. All the person has to understand is that they are getting married to the person they wish to marry and that they are not already married. They do not need to understand the complexities of how the marriage may affect their Will or financial circumstances.

To make a Will, the person has to understand:

(i) the nature of the act of making the Will,

(ii) the effect of making the Will,

(iii) the extent of their Property and Estate, and

(iv) the potential claims of others against their Estate.

Because of the Court of Protection’s decision, the father was considered able to marry his Girlfriend, but unable to then make a new Will.

The Daughter will continue to be her father’s Attorney, managing his Property and Financial Affairs, despite him now having a new Wife.

The Court of Protection urged the parties to try and put the dispute behind them and focus on care, as the father is now suffering from a degenerative disease and is likely to need a lot of help in the future.

If you are involved in or dealing with an Estate where there are disputes relating to Powers of Attorney, capacity issues, Court of Protection proceedings, or issues relating to marriage and its effect on Wills, then please contact our Contentious Probate Team for a FREE assessment on 0808 139 1606 or by dropping us an email. 


Author: cpl
